Dowling v. Central Office et al
Filing
83
MEMORANDUM OPINION AND ORDER: Adopting the 10 Proposed Findings and Recommendations by Magistrate Judge; overruling Plaintiff's 37 Objections; dismissing Plaintiff's claims against the following named Defendants: (1) Central Office; (2) FBPO (Federal Bureau of Prisons) Director; (3) Mid Atlantic Office Regional Direction; (4) Warden D. L. Young; (5) A. Warden Serrato; (6) A. Warden Birch; (7) DAP-C Jason Weaver; (8) T. Milam; (9) C. Meadows; (10) J. Grimes; (11) L. Flanagan; (1 2) J. Davis; (13) (DTS) Robert Smith; (14) DTS Eric Woolwine; (15) William Carnell; (16) Frances F. Lilly, Health Information Technologist; and (17) FBPO FCI Beckley; dismissing the following counts:(1) Claim of a denial of the right to participate i n BOPs administrative remedy process; (2) Claim of verbal abuse and harassment in violation of the EighthAmendment; (3) Claim of exposure to secondhand smoke in violation of the Eighth Amendment;(4) Claim of expulsion from RDAP (residential drug abus e program) in violation of the Due Process Clause; (5) Claim of denial of educational programs in violation of the Due Process Clause; and (6) Claim of improper disclosure of confidential records; adopting the 33 Proposed Findings and Recommendati ons by Magistrate Judge; denying the 32 Motion for TRO filed by Vernon B. Dowling; directing that the Plaintiff be granted leave to file a proposed amended complaint, consisting of no more than 15 pages, asserting any retaliation claims against the dismissed defendants, by 8/22/2018. Signed by Judge Irene C. Berger on 7/19/2018. (cc: Magistrate Judge Aboulhosn; attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
VERNON B. DOWLING,
Plaintiff,
v.
CIVIL ACTION NO. 5:18-cv-00055
CENTRAL OFFICE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
The Plaintiff filed a pro-se Complaint (Document 2), asserting various constitutional and
tort claims against the Bureau of Prisons and its employees. By Standing Order (Document 3),
entered on January 16, 2018, this matter was referred to the Honorable Omar J. Aboulhosn, United
States Magistrate Judge, for proposed findings of fact and recommendation for disposition.
Magistrate Judge Aboulhosn entered his Proposed Findings and Recommendation (PF&R)
(Document 10) on January 19, 2018.
Therein, Magistrate Judge Aboulhosn recommends that the Court dismiss the Plaintiff’s
claims against the following named Defendants: (1) Central Office; (2) FBOP (Federal Bureau of
Prisons) Director; (3) Mid Atlantic Office Regional Director; (4) Warden D. L. Young; (5) A.
Warden Serrato; (6) A. Warden Birch; (7) DAP-C Jason Weaver; (8) T. Milam; (9) C. Meadows;
(10) J. Grimes; (11) L. Flanagan; (12) J. Davis; (13) (DTS) Robert Smith; (14) DTS Eric
Woolwine; (15) William Carnell; (16) Frances F. Lilly, Health Information Technologist; and (17)
FBOP FCI Beckley. He further recommends that the following counts be dismissed: (1) Claim
of a denial of the right to participate in BOP’s administrative remedy process; (2) Claim of verbal
abuse and harassment in violation of the Eighth Amendment; (3) Claim of exposure to secondhand
smoke in violation of the Eighth Amendment; (4) Claim of expulsion from RDAP (residential drug
abuse program) in violation of the Due Process Clause; (5) Claim of denial of educational
programs in violation of the Due Process Clause; and (6) Claim of improper disclosure of
‘confidential records.’ The Magistrate Judge found that further proceedings were appropriate
with regard to the Plaintiff’s claims of retaliation, right to access the courts, and right to
send/receive mail, and those matters remain referred to the Magistrate Judge. The Plaintiff filed
timely objections (Document 37) to portions of the PF&R.
The Court has also reviewed the Magistrate Judge’s second Proposed Findings and
Recommendation (Document 33), recommending denial of the Plaintiff’s letter-form motion for a
temporary restraining order or preliminary injunction (Document 32). The Plaintiff did not file
objections to that PF&R, and so it will be adopted without objection.
STANDARD OF REVIEW
This Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
However, the Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition,
this Court need not conduct a de novo review when a party “makes general and conclusory
objections that do not direct the Court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When reviewing
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portions of the PF&R de novo, the Court will consider the fact that the Petitioner is acting pro se,
and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106
(1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
PF&R FINDINGS
The Plaintiff presented his complaint in narrative form in multiple documents. The
Magistrate Judge did a commendable job of organizing the complaint into distinct causes of action,
and the Court adopts the introductory portion of the PF&R for that purpose. In short, the Plaintiff
alleges the following:
(1) That the Central Office, FBOP Director, Mid-Atlantic Regional Director, Warden
Young, Warden Serrato, and Warden Birch have rendered the BOP’s Administrative
Remedy process unavailable or futile;
(2) That Defendants Toler, Taylor, James, Rayban, Toney, and Sweeney have retaliated
against him for filing administrative remedies;
(3) That Francis F. Lilly breached confidentiality by submitting irrelevant medical records
in a civil action pending in South Carolina. He alleges that the publication of those
medical records constitutes libel, slander, and invasion of privacy;
(4) That DTS Robert Smith exposed him as an informant to fellow inmates;
(5) That Defendant Rayban “sexually assaulted” him by asking if he was gay and making
suggestive comments;
(6) That Defendants Toler, Taylor, James, and Rayban denied him adequate educational
opportunities because the teacher is often absent, and he is tutored by an inmate who
recently passed his GED;
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(7) That he is exposed to second-hand smoke by all of the named Defendants, who he
alleged either smoke or chew tobacco outside the units and on routes he must take
around the compound;
(8) That he is being denied access to the courts because Defendants Hill and Stennett
interfere with his access to legal mail and documents, and threaten to retaliate against
him for filing paperwork; and
(9) That he was improperly removed from RDAP.
(PF&R at 1-4.)
The Magistrate Judge explained that unavailability of the administrative remedy process
operates to excuse a failure to exhaust such remedies prior to filing suit in federal court, but is not
actionable as an independent cause of action. However, he found that the Plaintiff’s claim that
Defendants Toler, Taylor, James, Rayban, Hill, Toney, and Sweeney retaliated against him for
filing administrative remedies should proceed.
The Magistrate Judge next analyzed the
Plaintiff’s Eighth Amendment claims and found that the allegations of verbal abuse and
harassment failed to state a claim, based on the applicable precedent. He noted that exposure to
second-hand smoke may constitute an Eighth Amendment violation where the inmate
demonstrates that he is exposed to unreasonably high levels of tobacco smoke and the prison
authorities demonstrated deliberate indifference to the health risk. However, he found that the
Plaintiff did not set forth allegations sufficient to establish a violation. The Magistrate Judge
further found that inmates do not have a constitutional right to participate in rehabilitative
programs while incarcerated, and so the Plaintiff should not be permitted to proceed with the due
process claims related to RDAP and educational. Finally, the Magistrate Judge found that the
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allegation that Defendant Lilly published confidential records on PACER did not state a
constitutional or other federal claim.
DISCUSSION
The Plaintiff’s objections are devoted primarily to further detailing his grievances, rather
than contesting the legal or factual basis of the Magistrate Judge’s recommendations. He argues
that his claim regarding expulsion from RDAP should be permitted to proceed because it was
arbitrary and capricious, and he was removed from the program to retaliate against him for
asserting complaints. The Plaintiff names Defendants Robert Smith and DAP-C Jason Weaver
as responsible for retaliating against him by removing him from RDAP after he reported that
Robert Smith failed to protect his identity as an informant regarding a theft within the prison. He
states additional factual allegations asserting retaliation against several Defendants, including
some of those the Magistrate Judge recommended be dismissed.
In addition, the Plaintiff
expands upon his allegations regarding his exposure to second-hand tobacco smoke. He asserts
that prison employees smoke in the doorways of units, that inmates collect discarded chewing
tobacco and smoke it, and that the exposure to tobacco smoke aggravates his asthma. The
Plaintiff further argues that the totality of the circumstances of his confinement constitute an
Eighth Amendment violation, including the sexual harassment.
To the extent the Plaintiff objects to dismissal of his claims regarding his removal from
RDAP, the Court finds that the objections must be overruled. As this Court has previously found,
“participation in and expulsion from the RDAP program is not a protected liberty interest in the
Due Process Clause.” Owens v. Ziegler, No. 5:11-CV-00864, 2012 WL 3782557, at *4 (S.D.W.
Va. Aug. 31, 2012) (citing Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S.
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1, 7 (1979) for the proposition that a convicted person has no protected right to be released before
expiration of a valid sentence). Thus, although evidence regarding the Plaintiff’s removal from
RDAP may be relevant to his retaliation claims, there is no legal basis for a stand-alone claim
challenging his removal from the RDAP program.
The Court further finds that the PF&R properly recommended dismissal of the sexual
assault or harassment claims. While sexual abuse can state an Eighth Amendment claim, verbal
sexually explicit comments of the type alleged by the Plaintiff do not. Jackson v. Holley, 666 F.
App'x 242, 244 (4th Cir. 2016) (unpublished). Therefore, the allegations that Defendant Rayban
engaged in sexual harassment by asking the Plaintiff if he was gay or making other suggestive
comments do not state a constitutional claim.
The Court further declines to exercise supplemental jurisdiction over any potential state
law claims arising from the publication of confidential documents on PACER in his litigation
pending in South Carolina. Those allegations do not appear to be sufficiently related to the
instant federal allegations to support supplemental jurisdiction.
The remainder of the Plaintiff’s objections are better characterized as attempts to amend
his complaint by asserting additional facts related to retaliation, interference with access to the
courts, and exposure to secondhand smoke. The Court has carefully reviewed the documents
filed prior to issuance of the PF&R and finds that the Plaintiff did not allege facts that would
support a retaliation claim against the Defendants recommended for dismissal. The facts alleged
regarding secondhand smoke were likewise insufficient to state a claim. Therefore, the Court
finds that the PF&R should be adopted in full.
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Viewing the objections in part as a motion to amend, the Court finds that an additional
motion to amend should be permitted with respect to the retaliation claims, but not as to those for
secondhand smoke or interference with the administrative remedy process.
Although the
Plaintiff’s additional allegations regarding exposure to secondhand smoke may be sufficient to
state a claim, he has since been transferred to a different facility to which those factual allegations
are not applicable.
See Helling v. McKinney, 509 U.S. 25, 36–37 (1993) (establishing the
standard for Eighth Amendment claims involving exposure to secondhand smoke and noting that
transfer to a new facility would be relevant to such claims). The additional allegations related to
interference with the administrative remedy process may be relevant to any motion to dismiss or
for summary judgment based on failure to exhaust administrative remedies, but do not state an
independent claim.
However, Plaintiff’s additional allegations of retaliation may be sufficient to state a claim
against certain dismissed Defendants.
The Court notes that the Plaintiff has filed several
additional documents subsequent to his objections seeking to amend and/or add additional
allegations against the dismissed Defendants and previously unnamed Defendants.
The
Magistrate Judge permitted some amendments, and denied those related to the dismissed
Defendants pending resolution of the objections to the PF&R.
Given the assortment of
allegations spread amongst several motions, the Court finds that the most efficient and prudent
course of action is to permit the Plaintiff to file a single proposed amendment with all retaliation
allegations against the dismissed Defendants.1 Because the Plaintiff has been transferred to a
1 Should the Plaintiff choose to file an amendment to his complaint, the Court urges him to limit the document to
relevant factual allegations, organized to clearly assert such allegations against each Defendant he seeks to join.
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facility outside this Court’s jurisdiction, such that allegations of additional wrongdoing could not
properly be joined in this case, further amendments will be strongly disfavored.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that
Judge Aboulhosn’s Proposed Findings and Recommendation (PF&R) (Document 10) be
ADOPTED and the Plaintiff’s objections (Document 37) be OVERRULED. The Court further
ORDERS that the Plaintiff’s claims be DISMISSED against the following named Defendants:
(1) Central Office; (2) FBOP (Federal Bureau of Prisons) Director; (3) Mid Atlantic Office
Regional Director; (4) Warden D. L. Young; (5) A. Warden Serrato; (6) A. Warden Birch; (7)
DAP-C Jason Weaver; (8) T. Milam; (9) C. Meadows; (10) J. Grimes; (11) L. Flanagan; (12) J.
Davis; (13) (DTS) Robert Smith; (14) DTS Eric Woolwine; (15) William Carnell; (16) Frances F.
Lilly, Health Information Technologist; and (17) FBOP FCI Beckley. The Court ORDERS that
the following counts be DISMISSED: (1) Claim of a denial of the right to participate in BOP’s
administrative remedy process; (2) Claim of verbal abuse and harassment in violation of the Eighth
Amendment; (3) Claim of exposure to secondhand smoke in violation of the Eighth Amendment;
(4) Claim of expulsion from RDAP (residential drug abuse program) in violation of the Due
Process Clause; (5) Claim of denial of educational programs in violation of the Due Process
Clause; and (6) Claim of improper disclosure of ‘confidential records.’
In addition, the Court ORDERS that the Magistrate Judge’s second Proposed Findings
and Recommendation (Document 33) be ADOPTED without objection, and that the Plaintiff’s
letter-form motion for a temporary restraining order or preliminary injunction (Document 32) be
DENIED.
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Finally, the Court ORDERS that the Plaintiff be granted leave to file a proposed amended
complaint asserting any retaliation claims against the dismissed Defendants. Such a proposed
amended complaint must be filed no later than August 22, 2018, and shall be no more than
FIFTEEN (15) pages.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Aboulhosn, to counsel of record, and to any unrepresented party.
ENTER:
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July 19, 2018
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